Lee v. Gore: Round Two

I blogged here about the North Carolina Court of Appeals’ initial opinion in Lee v. Gore, ___ N.C. App. ___ (January 19, 2010), holding that DMV lacked authority to revoke the petitioner’s driving privileges for refusing a chemical analysis upon receipt of an affidavit that failed to allege a willful refusal.  DMV filed a petition for rehearing, which the court granted.  The court of appeals filed a superseding opinion in Lee v. Gore this week with the same holding.  Judge Wynn dissented, however, securing for DMV an appeal of right to the state supreme court. The facts are discussed in some detail in the earlier post, so I won’t recount them again here.  Upon rehearing, DMV argued that it could suspend a person’s driving privilege for refusing to submit to a chemical analysis and that there was no requirement that the refusal be willful.  As support for its contention, DMV pointed to the statutorily prescribed notice of implied consent rights which require a chemical analyst to inform a defendant charged with an implied consent offense that his or her driver’s license will be revoked if he or she refuses a test.  DMV further argued that G.S. 20-16.2(d), which affords a defendant the right to a hearing before DMV to contest a refusal-based revocation, was “a statutory embodiment of due process protections for persons accused of willfully refusing chemical analysis,” and that the absence of a properly executed affidavit did not prevent DMV from revoking a person’s driving privileges. The court rejected DMV’s argument, citing precedent establishing that a person’s refusal to submit to a chemical analysis must be willful in order to suspend the person’s driving privileges. The court further rejected the notion, implicit in the State’s argument, that a refusal implies willfulness and therefore provides a sufficient basis for revocation. The court reasoned that if the State’s argument prevailed, DMV could revoke for mere refusal, but would only be required to provide notice and a hearing for a revocation resulting from a willful refusal—a result that it said could not have been intended by the General Assembly. This analysis begs the question:  What’s the difference between a willful refusal and a refusal?  A refusal is “ ‘the declination of a request or demand, or the omission to comply with some requirement of law, as the result of a positive intention to disobey.’ ” Joyner v. Garrett, 279 N.C. 226, 233 (1971) (quoting Black’s Law Dictionary (4^th ed. 1951)).  A willful refusal occurs when a person (1) is aware that he or she has a choice to take or refuse test, (2) is aware of the time limit within which he or she must take the test, and (3) voluntarily elects not to take the test or knowingly permits the prescribed thirty minute time limit to expire before electing to take the test. Etheridge v. Peters, 301 N.C. 76, 81 (1980).  In essence, a willful refusal is a refusal that occurs after the defendant is advised of his or her implied consent rights and is asked to submit to a chemical analysis.  See, e.g., Rice v. Peters, 48 N.C. App. 697, 700-01 (1980) (holding that purpose of refusal-revocation statute is “fulfilled when the petitioner is given the option to submit or refuse to submit to a breathalyzer test and his action is made after having been advised of his rights in a  manner provide by the statute”). The Lee court held that the sending to DMV of the test record ticket, on which the word “REFUSED” was printed and circled, did not satisfy the requirement that the affidavit include an affirmative statement of the person’s willful refusal, even though the affidavit referenced the attached test record ticket. While the new opinion omits troubling language from the earlier opinion stating that the test record ticket could not be considered part of the affidavit, the court nevertheless held that such a form “is not a substitute for a ‘properly executed affidavit’ as required by G.S. 20-16.2(c1).”  As it did earlier, the court again held that the officer’s failure to check the box on the form affidavit indicating a willful refusal resulted in DMV’s receipt of an affidavit that did not meet the statutory requirements.  For that reason, DMV had no authority to revoke the petitioner’s driving privileges and the subsequent hearing could not cure the shortcomings of the affidavit as the hearing never should have occurred. Judge Wynn dissented on the basis that the petitioner suffered no prejudice.  The dissent characterized the majority opinion as at odds with the holding in Ferguson v. Killens, 129 N.C. App. 131 (1998).  In Ferguson, the court held that DMV’s failure to notify the petitioner that his license was revoked until 99 days after the alleged refusal, which arguably violated the statutory requirement that DMV “expeditiously” provide such notice, did not require that the revocation be rescinded. Ferguson rejected the petitioner’s argument that rescission was required on the basis that the petitioner failed to show that he was prejudiced by the late notice and that expeditious notice was not among the five requirements listed in G.S.20-16.2(d) for consideration at a refusal-revocation hearing. While the Lee majority distinguished Ferguson on the basis that the requirement for expeditious notice did not affect DMV’s authority to revoke the license in the first instance, the dissent rejected that distinction, noting that because the request for a hearing suspends the revocation, the petitioner in Lee retained his license pending the hearing, just like the petitioner in Ferguson.  Thus, the dissent reasoned, the petitioner in Lee bore the burden of establishing that he was prejudiced by the improperly executed affidavit—a burden that he failed to satisfy. The dissenting opinion affords DMV an appeal of right to the state supreme court.  And even if that court adopts the majority view that, without an affidavit averring a willful revocation, DMV cannot act, I wonder whether the affidavit in Lee could be construed to make such an averment.  After all, a “willful refusal” is a refusal after notification of implied consent rights.  And the chemical analyst averred on the affidavit (box 7) that he “informed the driver orally and also gave notice in writing of the rights specified in G.S. 20-16.2(a)” and that he “completed informing the driver of the rights as indicated on the attached [test record ticket].” That statement, along with the incorporated test record ticket, arguably establishes a willful refusal. Nevertheless, unless and until the supreme court says otherwise, Lee v. Gore establishes that each required allegation of G.S. 20-16.2(c1) must be contained on the face of the form affidavit and revocation report before DMV can act to revoke a petitioner’s license.